UCULR Issue

8/18/2019 UCULR Issue

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UNIVERSITY OF CHICAGOUNDERGRADUATE LAW REVIEW

II. Balance, Justice, and Hoor: Bedoin Customary Law in the Modern WorldBy Williams Dixon...........................................................................Page 22

By Habib Olapade..............................................................................Page 4

Habib OlapadeHabib OlapadeHabib Olapade

I. Let Justice be Done Through the Heavens Fall - Why Ballot Regulations andPolitical Money are Two Sides of the SAme First Amendment Coin

III. Picturing Democracy: Analyzing Religious Exemptions to Voter ID LawsBy Elise Kostial.............................................................................Page 38

VOLUME V, ISSUE 1

IV. In the Language of “Because of”: Transgender Identity, Theory, and TitleVII Jurisprudence

By Andy Kim............................................................................Page 56


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Sponsored by the Student Government Finance Committee

Editor-in-Chief

Managing Editors

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Executive Articles Editor

Articles Editors

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Blog Editors

Jacob Romeo

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Jacklyn LiuEvan Zimmerman

Nayanika Challa Sydney HarrisSriya SiemsLuke WetterstromPeggy Xu

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Sebastien AkarmannEmma HermanMary Gen Sanner

Aida Sykes Andrew Young


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UCULR Volume IV, Issue 1 |54 | Ballot Regulations

Let Justice Be Done Trough the Heavens Fall - Why BallotRegulations and Political Money Are wo Sides of the Same First

Amendment Coin

Habib Olapade†1*

Abstract

Tis note provides an alternative judicial framework for approaching,

understanding, and evaluating contribution and independent expenditureprovisions. Contribution limitations restrict the amount of money acandidate can directly receive from a donor. On the other hand, expenditurelimits restrict the amount of money that an individual or group can spend onelectioneering communications prompting citizens to vote for a candidate.In Buckley v. Valeo, the Supreme Court reviewed a congressional statute thatimposed both contribution and expenditure limits on federal elections. TeCourt sustained the former but invalidated the latter. Tis note argues thatthe democratic theory undergirding the Court’s majority opinion inBuckley was awed and is normatively undesirable when compared with a moreinclusive communitarian model. Tis note then proposes a new frameworkfor evaluating limits on independent expenditures. In particular, it will arguethat courts should evaluate expenditure limits and ballot regulations undera similar standard because the objectives of the two procedural regulationsare analytically indistinguishable. Te note begins by isolating the pluralist

democratic theory that provides the animating ethos for the Court’sassertions inBuckley . Te piece concludes that a pluralist democratic theoryis normatively undesirable in contemporary America because it carries falseassumptions and promotes inequality in the political arena. Te note thenconsiders an alternative communitarian democratic theory and concludesthat this paradigm is more desirable because it fullls democratic equalityprinciples. Finally, the article applies this communitarian framework toexpenditure limits and nds that regulation of this communication may be justied by the government’s interest in protecting the integrity of elections– much in the same way that the government justies ballot restrictions orVoter ID.

Let Justice Be Done Tough the Heavens Fall – Why Ballot Regulations

†: Habib Olapade is an third-year at Stanford University

and Political Money Are wo Sides of the Same First Amendment Coin2On June 24, 1974, Richard Nixon took a seat in the Oval Office,

placed his head in his hands, and wept, a broken man.3 Less than two yearsremoved from one of the most impressive electoral victories in the nation’shistory, the poor California Quaker turned Commander-in-Chief, to noavail, had spent all of his renewed political capital ghting allegations ofnancial foul play during his last campaign.4 When confronted with theprospect of a legion of lawsuits from public interest rms, Nixon meltedunder the pressure and turned over his campaign records. Scandal ensued.Te classied documents revealed that the Nixon campaign was bankrolledby multiple million-dollar contributions from a few individuals andFortunate 500 Companies.5 o make matters even worse, Nixon spent a

2: See Rex v. Wilkes , 4 Burr 2527 (1770), where Lord Mans eld reportedlyuttered, “the constitution does not allow reasons of State to in uence our

judgments: God forbid it should! We must not regard political consequences;how formidable soever they might be: if rebellion was the certain consequence,we are bound to say ‘ at justitia ruat caelum’”(let justice be done though theheavens fall), in response the defense council of a journalist who publishedsensational articles badmouthing political opponents request for leniency in fearof what rowdy crowds may do. See also Brian Harris, The Literature of the Law(Hamphsire: Ashford Colour, 1998).3: Nixon had spent the previous night awake making several phone calls.Coincidently after he gave his famous ‘Watergate’ speech on April 30 th, he receivedtwo separate phone calls from Ronald Regan (available at https://www.youtube.com/watch?v=0hO0oVu6FUw ), then Governor of California, and George H.W.Bush (available at https://www.youtube.com/watch?v=aSrMOm1roVs ), who wasserving as Chairman of the Republican National Committee. Nixon’s di erentialtreatment of the two is interesting to say the least. Carroll Kilpatrick , Nixon

Resigns , Washington Post (August 9, 1974).4: Nixon fought to the end in order to prevent secret White House tapes fromcon rming his role in the debacle. In the end a unanimous Supreme Courtcomposed of four members he appointed forced him into submission. See UnitedStates v. Nixon 418 U.S. 683 (1974) (holding that the president could not claimexecutive privilege in the absence of a need to protect military, diplomatic, ornational security secrets and ignore a special prosecutor’s request for taperecordings and documents that were known to be relevant to the prosecutor’stask).5: See United States v. Finance Committee to Re-Elect President , 507 F.2d 1194(1974) (revealing a list of more than 1,500 persons who had contributed over$5 million to the Nixon campaign (including Richard Mellon Scaife, a heir tothe Mellon fortune, and W. Clement Stone, a billionaire insurance magnate)and a concerted e ort by the Nixon campaign to avoid disclosure requirements

in the Federal Election Campaign Act of 1972 by collecting over $20 million

https://www.youtube.com/watch?v=0hO0oVu6FUwhttps://www.youtube.com/watch?v=0hO0oVu6FUwhttps://www.youtube.com/watch?v=aSrMOm1roVshttps://www.youtube.com/watch?v=aSrMOm1roVshttps://www.youtube.com/watch?v=0hO0oVu6FUwhttps://www.youtube.com/watch?v=0hO0oVu6FUw


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substantial amount of the money on hiring staff to break into offices andbribe officials.6 o the extent that fair and untainted elections allow publicservants and the people to establish the necessary rapport for a governmentto draw on the electorate’s condence, Nixon had not only broken the rules,he made a mockery of the process.7

But from a purely functional perspective, the most disturbing aspectof the Nixon asco was that it was not clear that Nixon had broken anyrules. Federal bans on contributions from corporations and labor unions were on the statute books but were unenforced dead letters?8 Nixon, always

in contributions from individuals and corporations before the statute becamee ective on April 7, 1972). American Airlines was ned $5 thousand for makingan illegal $55,000 contribution to the Nixon campaign and attempting to cover upthe transaction by employing a Lebanese agent to funnel the cash through a Swiss

bank account. For a treatment of corporate prosecutions resulting from illegalcampaign activity Herbert E. Alexander, Financing the 1972 Election (Lexington:Lexington Books, 1976).6: Contemporaneous accounts suggest that excess funds from the Committee toRe-Elect the President were used to skew the results of the Democratic PresidentialPrimary system. Indeed after Edmund Muskie, a Democratic senator from Maine,lost the nomination bid to George McGovern, Muskie complained that the Nixoncampaign stole documents from his campaign headquarters, made phone calls inthe middle of the night claiming to represent Muskie, and published false items innewspapers cited in note 4.7: R. Michael Alvarez and Thad E. Hall, “Measuring Perceptions of ElectionThreats,” in Election Fraud , (Washington D.C.: The Brookings Institution,2008), 71-88.8: The Tillman Act of 1907 (2 USC. § 441b(2)) prevented corporations fromcontributing money to political campaigns and was the rst federal law to restrictcorporate involvement in the electoral process. The Smith-Connally Act extendedthe contribution ban to labor unions and was only operative for the duration of theSecond World War. The Taft-Hartley Act of 1947(29 USC § 401-531) made thecontribution ban permanent for labor unions. UC Irvine Law Professor RichardHasen writes that “disclosure reports were often missing, incomplete, or wrong.Enforcement was so lax that the Justice Department refused to prosecute 20 Nixonfundraising committees that had not led a single disclosure report during the1968 presidential campaign, or 107 congressional candidates who also violateddisclosure rules.” Some scholars may insist that Nixon’s behavior, regardless ofwhat others were doing, was still inexcusable. But in this instance, at least as it

pertains to Nixon’s fundraising activities, condemnation of the former president’s behavior is contingent on whether one believes that unenforced, formal regulationshave all the moral force of statutes that are actively enforced. For a philosophicalexamination of the di erence between regulations that are enforced and those

that are not, see Karl Llewellyn, A Realistic Jurisprudence – The Next Step 30

the pragmatist, could hardly be faulted for breaking regulations that noneof his competitors bothered to comply with. In truth, Nixon’s failure wassymptomatic of the political system’s failure.

In 1974, Congress responded to public outcry by passing severalamendments to the Federal Election Campaign Act of 1972.9 Teamendments, among other things, provided that “no person shall makecontributions to any candidate with respect to any election for Federal office which, in the aggregate, exceeds $1,000.”10 Te statute also prohibited any“person [from] making any expenditure [relative] to a clearly identiedcandidate during a calendar year [which] exceeds $1,000.”11 Contributionsare direct monetary gifts from a donor to a campaign. Expenditures areusually, but not always, media ads that support a certain political positionand by implication candidates who support that position, without explicitlynaming the candidates or coordinating with them.12

Colum L Rev. 431 (1930). For a treatment of early corporate campaign nanceregulations, see Adam Winkler, Other People’s Money: Corporations, AgencyCosts, and Campaign Finance Law 92 Georgetown L J 571 (2004). For a treatmentof loopholes in early campaign nance regulations, see Julian E. Zelizer, Seeds ofCynicism: The Struggle over Campaign Finance , 1956-1974 14 J. POL’Y HIST73, 76 (2002) cited in Richard Hasen, “The Nine Lives of Buckley v. Valeo,” in

First Amendment Stories , (New York: Foundation Press, 2012) 345-374 .9: Pub L No 93-433. From this point forward, any reference to the FECA is onlyconcerned with the 1974 amendments unless otherwise stated.10: 2 USC § 608 (b).11: 2 USC § 608 (e)(1). Congress also limited the amount of personal and familyfunds that candidates could spend on their campaigns (2 USC § 608 (a)(1)), placedan aggregate cap on campaign expenditures for candidates running for federalo ces 2 USC § 608 (c)), erected a public nancing regime for presidential electioncampaigns (2 USC § 6096), and established the Federal Election Commission (2USC 14). These provisions will not be examined in this article.12: Expenditures that are coordinated in any way with a candidate or her campaignare treated as contributions. See Federal Election Commission v. Colorado

Republican Federal Campaign Committee II 533 U.S. 431 (2001) (establishingthat the First Amendment allows a party’s coordinated election expenditures to betreated functionally as contributions). Compare to Colorado Republican CampaignCommittee v. Federal Election Commission 518 U.S. 604 (1996) (holding thata party’s independent expenditures may not be subject to contribution limitsapplicable to candidates when a candidate has not been nominated.) With regardto an electioneering communication’s reference to a clearly identi ed candidate,for quite some time ads that refrained from using magic words such as “vote for,”“elect,” “support,” “cast your ballot for,” “vote against,” “defeat,” or “reject” weredeemed permissible. However, the line between ads that ‘expressly advocated’ for

a candidate and ads that only advocated on behalf of political issues was always


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Te independent expenditure limitation, in the words of Claiborne Pell,then chair of the Senate Subcommittee on Elections and Privileges, wasintended to “create a climate that minimizes abuse…and [allows] votersthe right to choose candidates, who are not beholden to large politicalcontributions.”13 Expenditure limitations also enhanced the effectiveness

unclear as evidenced by this Wisconsin Right to Life Ad which was not held to be express advocacy (available at https://web.archive.org/web/20040805062820/http:/www.befair.org/ad_campaign.php ) . See also Federal Election Commissionv. Wisconsin Right to Life 551 U.S. 449 (2007) (ruling corporations and unions

could seek an as-applied exception from § 201 of the Bipartisan CampaignReform Act, which prevented corporations and unions from engaging in expressadvocacy within 30 days of a federal primary election or 60 days of a federalgeneral election).13: Senate Floor Debates on S. 3044, 93 rd Cong., 2 nd Sess. reprinted in FEC,LEGISLATIVE HISTORY OF FEDERAL ELECTION CAMPAIGN ACTAMENDMENTS OF 1974, at 193 (1997). Many readers may be tempted toconceive of undue in uence as strictly quid pro quo bribery. But as former LaborSecretary Robert Reich pointed out in a New Yorker article that appeared onOctober 13, 1997, undue in uence can take many forms. In some cases the harmthe state may wish to guard itself against is not blatant misconduct but rather, thegradual shift in a politician’s mode of thinking which comes with constant andnever-ending elbow rubbing among wealthy socialites. Secretary Reich writes:“Here’s how it works. A wealthy individual receives an invitation to have co eewith the President or, say, with the chairperson of a congressional committee.The invitation may have come about without any e ort on the part of the wealthyindividual, or the wealthy individual may have solicited it. In either case, the realvalue of the event to the individual is that it con rms the impression of othersthat he is capable of commanding the attention of a President or another powerful

person in Washington. The photograph memorializing the co ee chat, completewith signature, hangs by no means discreetly on the o ce wall. The personalthank-you note to the wealthy individual which arrived from the politician is slylyshared with others. Word spreads of a subsequent invitation to golf.What thisdoes for the wealthy individual is incalculable. Suddenly, he has become someonewith access to a Powerful Ear -- become a person, it is presumed, of in uence.Such a reputation is valuable to him, socially and nancially and in the dimly litareas in between. It gives the people with whom he does business the sense thathe can deliver on whatever he proposes . . . .In return, the politician may or maynot get a campaign contribution directly from the wealthy individual, and, in fact,may never get much of one at all. But as far as the politician is concerned thatdonation is not the point of the transaction. Through the wealthy individual the

politician gains access to a network of wealthy people . . . .No policy has beenaltered, no bill or vote willfully changed. But, inevitably, as the politician enters

into the endless round of co ees, meals and receptions among the networks of the

of contribution limits by limiting the demand for money amongcandidates14and preventing wealthy individuals from using independent adcampaigns to acquire undue inuence over public officials.15

wealthy, his view of the world is reframed. The seduction has been mutual. Theaccess that the politician provides the wealthy and the access that the politicianthereby gains to the ever-expanding network of money reinforce each other.Increasingly, the politician hears the same kinds of suggestions, the same voicingof concerns and priorities. The wealthy do not speak in one voice, to be sure, butthey share a broad common perspective in which such things as balancing the

budget, opening trade routes, and cutting taxes on capital gains are of central

importance. Meanwhile, the politician hears only indirectly and abstractly fromthe less comfortable members of society.” See Robert Reich, Party Favors: Inthe Raising of Campaign Funds, the Currency Is Power by Association , The NewYorker, Oct. 13, 1997 [cited in Frank Askin, RESPONSE: Political Money and

Freedom of Speech: Kathleen Sullivan’s Seven Deadly Sins -- an Antitoxin , 31U.C. DAVIS L.REV. 3 (1998).14: See Buckley v. Valeo 424 U.S. 1 (1976) (White dissenting) (disputing theCourt’s equation of money with speech and arguing that expenditure limits arenecessary in order to ensure that contribution limits are e ective). To the extentthat the 1974 FECA amendments sought to decrease the role of money in politics,lowering maximum contribution limits but allowing unlimited expenditureswould have been counterproductive. This was the case because if campaignerswere allowed to spend as much as they wanted to on elections and continuedto believed that there was a positive correlation between expenditure levels andwinning elections, they would be incentivized to raise the same amount of moneythey had accumulated before the passage of the FECA amendments. However withsmaller maximum contribution limits, the campaigners would have to raise thatmoney among a broader base of supporters, which arguably would have increasedthe amount of time a candidate devoted to fundraising – a result that presumably,the FECA amendments did not want to achieve. Expenditure limits reinforced thestatutory framework by capping the demand for money among campaigns. This

point was made by Senator Bill Bradley of New Jersey: “[All interested moneyin politics is potentially corrupting. Whether it comes from an Individual, a PACor a candidate’s own investment, it sometimes comes with strings attached andlimiting one source will only open up others. Money in politics is like ants inthe kitchen. You have to close every hole, or they will nd a way in.” See BillBradley , Money, Interest Groups are Corrupting Democracy , The Baltimore Sun,July 21, 1996.15: House Report No 93-1239 on H.R. 16090, 93 rd Cong., 2 nd Sess., p. 6 (1974). It isstill an open question whether independent expenditures are bene cial or harmfulto campaigns they seek to support. The consensus answer seems to be that any

prospective bene t is limited and might even be counterproductive. See RichardL. Berke, Outside “Help” on Issues Raises G.O.P. Fears of Voter Backlash , New

York Times, Mar. 25, 1998. However, even if this is the case, it does not eradicate

https://web.archive.org/web/20040805062820/http:/www.befair.org/ad_campaign.phphttps://web.archive.org/web/20040805062820/http:/www.befair.org/ad_campaign.phphttps://web.archive.org/web/20040805062820/http:/www.befair.org/ad_campaign.phphttps://web.archive.org/web/20040805062820/http:/www.befair.org/ad_campaign.php


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However inBuckley v. Valeo (1976)16, the Supreme Court laid wasteto the FECA’s statutory framework by invalidating the independentexpenditure limit on the grounds that it violated the First Amendmentright to freedom of speech. Tis article will argue that the democratictheory undergirding the Court’s majority opinion inBuckley was awedand is normatively undesirable when compared with a more inclusivecommunitarian model. Tis piece will then propose a new framework forevaluating limits on independent expenditures. In particular, it will arguethat courts should evaluate expenditure limits and ballot regulations under asimilar standard because the objectives of the two procedural regulations areanalytically indistinguishable.

Te Supreme Court’s 294 page per curiamBuckley opinion is riddled with internal contradictions because, for better or worse, it subordinatedprincipled reasoning for compromise.17 Te opinion was delivered undersevere time constraints in part because the Justices wanted to ensure thatfederal candidates had a clear picture of which regulations they wouldbe obliged to follow during the upcoming 1976 election season.18 Of

the prospect of wealthy spenders gaining undue access or in uence over publico cials. Candidates can often nd out who has been spending funds to in orderto in uence their chances of election and reward these spenders accordingly ifthey win, or promise access in the event that they win in order to discourageindependent expenditures. See Cass Sunstein, Political Equality and UnintendedConsequences , 94 Colum L Rev. 1396 (1994).16: Buckley v. Valeo , 424 US 1 (1976)17: The opinion contained 178 footnotes with 5 di erent opinions attached to the

per curiam opinion. The literature criticizing Buckley is large and growing. SeePeter Strauss, Corruption, Equality, and Campaign Finance , 94 Colum L Rev.1369 (1994), J. Skelly Wright, Politics and the Constitution: Is Money Speech ,85 Yale L J. 1001 (1976), Daniel Polsby, Buckley v. Valeo: The Special Nature of

Political Speech , SUP.CT.REV. (1976), Cass Sunstein, Free Speech Now , U Chi LRev. 255 (1992), and Ronald Dworkin, The Curse of American Politics , N.Y. Rev.of Books, October 17, 1996.18: The FECA’s swift passage to the nation’s highest tribunal was no accident.During the Senate’s debate on the FECA amendments, Senator James Buckley of

New York introduced an amendment to provide for expedited review of the statute,which would allow a prospective challenger to le a lawsuit in U.S. District Courtfor the District of Columbia. The D.C. court would then certify constitutionalquestions for an en banc hearing before the United States Court of Appeals forthe District of Columbia Circuit with appeal to the U.S. Supreme Court also being

provided. During debate Senator Buckley said: “[It] is a modi cation that I amsure will prove acceptable to the managers of the bill. It merely provides for the

expeditious review of the constitutional questions I have raised. I am sure we will

particular interest here, was the Court’s differential analysis of expenditureand contribution limits under the First Amendment. According to the Justices, contribution limits were constitutional because they only entailed“a marginal restriction on the contributor’s ability to engage in freecommunication.”19 Indeed, in the eyes of the Court, “contributions… atmost [only]…provide[d] a rough index of support for the candidate.”20 Alimitation on contributions therefore involved little restraint on politicalcommunication and was closely drawn to serve the state’s compellinginterest in preventing quid pro quo corruption or the appearance ofcorruption.21

On the other hand, expenditure limits were categorically different fromcontribution restrictions because a “restriction on how much a person orgroup can spend on political communication during a campaign reducesthe quantity of expression by restricting the number of issues discussed,the depth of their exploration, and the size of the audience reached.”22 Te $1,000 spending limit, consequently, excluded all citizens and groupsexcept candidates and political parties from the most effective means ofcommunication [i.e. mass telecommunication ads].23 After taking noticeof this fact, the Court concluded that the expenditure limitations wouldhave to pass strict scrutiny, or be narrowly tailored to serve a compellinggovernment interest, in order to be held constitutional. Because strictscrutiny is perhaps the most rigorous standard of review a court tryingconstitutional issues can employ, the chance that the Justices would upholdthe expenditure limits were slim from the outset.24

Te Court refused to accept the argument that expenditure limits

were appropriately tailored to prevented corruption or the appearance of

all agree that if, in fact, there is a serious question as to the constitutionality ofthis legislation, it is in the interest of everyone to have the question determined bythe Supreme Court at the earliest possible time.” 120 Cong. Rec. 10562 (1974).19: Buckley v. Valeo at 29-30 (cited at note 15).20: Id at 30.21:Id at 31.22: Id at 29.23: This sentence was accompanied by a footnote that said: “being free to engagein unlimited political expression subject to a ceiling on expenditures is like beingfree to drive an automobile as far and as often as one desires on a single tank ofgasoline.” See Buckley v. Valeo at 120 (cited at note 15).24: Giving credence to the popular idiom that strict scrutiny is strict in theory, butfatal in fact. See Gerald Gunther, The Supreme Court, 1971 Term – Foreword: InSearch of Evolving Doctrine on a Changing Court: A Model for a Newer Equal

Protection , 86 Harv L Rev 3 (1972).


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corruption for two reasons. First, the Justices argued that spenders coulddodge the limit as long as they did not explicitly urge the election or defeatof a candidate in their message. Second insofar as candidates were theonly entities the FECA sought to protect from corruption, independentexpenditures could not corrupt them because independent expendituresby denition could not be coordinated with a candidate. Te Justices thenturned to another potential rationale for the limits: equalizing speakingpower among individuals and groups. In one of the more infamous lines inthe U.S. Reports, the Court declared that “the concept that the governmentmay restrict the speech of some [in] society in order to enhance the relativevoice of others is wholly foreign to the First Amendment” and struck downthe expenditure limitations – even though they were necessary to ensure theintegrity of the contribution caps the Court readily accepted.25

Countless commentators have lambasted Buckley ’s equation of money with speech as utterly antithetical to any reasonable notion of democracy.26 But, this portrayal is supercial.Buckley can be read as consistent withdemocracy albeit only a certain type: pluralist/public choice democracy.27

Pluralist/public choice democrats are realists in the sense that theyrecognize the limits of the individual citizen to register his or her opinions with him or her seemingly distant government in the twenty-rst century.28 Voters may have a tough time communicating with decision-makers, maynot be well-informed, and can be easily inuenced by slanted information.29 In order to overcome these barriers, the populace mobilizes and fragmentsinto different interest groups based on salient identities or preferences thatprecede and are unaltered by debate during and after election season. Tis

phenomenon, in turn, gives rise to countless organizations via Newtonianprinciples. For example, dairy milk farmers may realize that they stand to

25: Buckley v. Valeo . at 37 (cited at note 15). See also McCutcheon v. Federal Election Commission 134 S.Ct. 1434.26: See Phillip Elliot, Former Supreme Court Justice John Paul Stevens: Moneyis not Speech , Hu ngton Post, April 30, 2014. David Kaiys, Money Isn’t Speechand Corporations Aren’t People , Slate, January 22, 2010. Peter Overby, HillaryClinton Supports Amendment to Get Hidden Money Out of Politics , WBGH News,April 18, 2015. and Newton N. Minow, Spending is not Free Speech , WashingtonPost, February 16, 2000.27: See Pam Karlan and Samuel Issacharo , The Hydraulics of Campaign Finance

Reform , 77 Tex L Rev 1723 (1999).28: Walter Lippmann, Public Opinion (New York: Macmillan, 1949). DavidTruman, The Governmental Process: Political Interests and Public Opinion (New York: Knopf, 1951).

29: Id.

benet if they collectively organize and apply pressure on the governmentfor preferential subsidies. In reaction, soy milk producers may feelcompelled to organize and lobby the government to protect their interests.Because the pluralist model assumes that no one group has enough powerto control the governing process and can only hold onto the reins of powerfor as long as it can retain a coalition of supportive factions, control ofthe government constantly switches among parties composed of differentgroups.30 Hence under the pluralist model, the political system exists inorder to facilitate the aggregation of pre-existing desires and enable votersto obtain government benets or prevent government action in accordance with those desires. o this end,Buckley ’s accordance of First Amendmentprotection to political money allows these relatively equal groups to speak/spend as much as they want without fear of reprisal from a governmentthat may maliciously seek to silence certain factions for the benet ofothers.31 On this count if one accepts pluralism,Buckley is a refreshingreinforcement. But as a corollary to this postulate, if pluralist democracy isfound to be unacceptable,Buckley is no longer welcome at the table.

30: There are several works of political theory that have been identi ed ashistorical antecedents of modern pluralist theory. See James Madison, Federalist10 [cited in Michael Stokes Paulsen, Steven G. Calabresi, Michael W. McConnell,and Samuel L. Bray, The Constitution of the United States 581-586 (Foundation:

New York, 2013) 581. “Vices of the Political System of the United States,”University of Chicago, accessed April 29, 2015, http://press pubs.uchicago.edu/founders/documents/v1ch5s16.html, Max Farrand, The Records of the FederalConvention of 1787 (New Haven: Yale, 1911) 135.31: When a state regulation appears to be motivated out of a desire to regulatespeech because of its content or the viewpoint it professes, courts presumethat the regulation violates the First Amendment and apply strict scrutiny. SeeTexas v. Johnson 491 US 397 (1989) (invalidating a ban on ag burning thatwas under-inclusive because the regulation sought to ban the communication ofanti-government sentiment), Consolidated Edison Corporation v. Public ServiceCommission 447 US 530 (1980) (commenting that content based regulations ofspeech can only be sustained on challenge, if the law is a precisely drawn meansof serving a compelling state interest), and R.A.V. v. City of St. Paul 505 US 377(1992) (establishing that the state may not regulate unprotected forms of hatespeech by favoring one viewpoint over another). Compare this approach to stateregulations of speech which are found to be motivated by interests other than thesuppression of ideas. See United States v. O’Brien 391 U.S. 367 (1968) (upholdinga ban on the burning of draft cards as a state e ort to ensure the e ciency ofthe draft rather than a prohibition on the expression of anti-war sentiments) and

Kovacs v. Cooper 366 US 77 (1949) (upholding an ordinance preventing the use

of sound trucks in streets as a time, place, and manner restriction).


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As a purely descriptive matter, pluralist democrats and cynical publicchoice theorists may be correct in arguing that their democratic theoryclosely resembles how the national government functions currently.32 Buteven if we were to concede the validity of this point, it has no bearingon whether such a system is ideal or even normatively desirable whencompared to other alternatives. Indeed, a strong argument could be madethat the pluralist model is decient from both a procedural and substantiveperspective.

Practically speaking, procedural integrity during elections andrepresentative democracy are not mutually exclusive.33 If one believes thatrepresentative democracy has a superior claim to legitimacy over otherforms of government because it is founded on, and makes regular recourseto, popular sovereignty then, the elections that allow the government toconsult its raison d’être cannot be unjust in terms of who may and may notparticipate.34 For our purposes, the justness of an exclusion is determinedby whether an electoral procedure forecloses the participation of a groupbecause it possess a trait that bears no relevance towards intelligent exerciseof the ballot. For instance,ceteris paribus , the state may prevent the mentallyill from voting but may not disenfranchise the poor. Tis conclusion isvalid for two reasons. First, in law and fact every citizen ought to havean equal claim on their government irrespective of race, religion, gender,or wealth (henceforth referred to as thenon-discrimination principle).35

32: Richard A. Posner, The Problems of Jurisprudence (Cambridge: Harvard,1993) 354-355. [Excerpted in Abner J. Mikva and Eric Lane, Legislative Process(New York: Aspen, 2009) 15-16.]33: To paraphrase Associate Justice Robert H. Jackson during the height of theCold War: “if the choice were between American substance combined Soviet

procedure as opposed to Soviet substance combined American procedure mightwell prefer the latter.” The importance of procedure extends beyond the courtroomand can have substantive policy implications during the legislative process. Infact, John Dingell, a retired congressman from Michigan, once remarked “if youlet me write the procedure and I let you write the substance, I’ll beat you everytime.”34: See Bruce E. Cain, Moralism and Realism in Campaign Finance Reform , UChi Legal F (1995) and John Locke, Second Treatise of Government , 47 (1689).35: The Supreme Court’s 14 th amendment equal protection jurisprudence showsa deep commitment to the non-discrimination principle. See Korematsu v.United States 323 US 241 (1944) (establishing for the rst time that governmentdistinctions on the basis of race will be subject to strict scrutiny), Brown v.

Board of Education I 347 U.S. 483 (1954) (overturning the separate but equaldoctrine in public education), United Jewish Organizations of Williamsburg v.

Carey 430 U.S. 144 (1977) (ruling that state consideration of race in the context

Ideally, citizens would exercise this prerogative by voting and participatingin the political process on a level playing eld, which is why the U.S.Constitution does not permit American jurisdictions to adopt a formal orde facto plural voting scheme indexed to some desirable trait.36 Second,

of redistricting immediately after the Civil Rights Movement was not invidiousand thus warranted rational basis review as opposed to strict scrutiny), AdarandConstructors Incorporated v. Peña 515 US 200 (1995) (establishing that all race

based distinctions by the state are invidious and will be subject to strict scrutiny),Church of the Lukumi Babalu Aye v. City of Hialeah 508 US 520 (1993) (holding

that an ordinance preventing the religiously-mandated ritual sacri ce of animalsviolated the free exercise clause of the First Amendment), Sherbert v. Verner 374 US 398 (1963) (establishing that termination of public employment forreasons that con icted with the employee’s religion were to be subject to strictscrutiny), Reed v. Reed 404 US 71 (1971) (ruling that a state probate statute thatgave preference to men over women in the administration of estates violated the14th amendment’s equal protection clause), Craig v. Boren 429 US 190 (1976)(establishing that state regulations discriminating on the basis of gender would besubject to intermediate scrutiny), and Harper v. Virginia State Board of Elections 383 US 663 (1966) (striking down a state poll tax as a violation of the 14 th amendment’s equal protection clause).36: See Baker v. Carr 369 US 186 (1962) (holding that malapportionment claimsunder the 14 th amendment’s equal protection clause were justiciable and notforeclosed by the political question doctrine), Reynolds v. Sims 377 US 533 (1964)(holding that the 14 th amendment’s equal protection clause requires state legislativedistricts to be apportioned with a good faith e ort to achieve population equality)and Karcher v. Daggett 462 US 725 (1983) (rea rming the one person one vote

principle and a standard of strict population equality for congressional districts).To be sure, this notion of voter equality did not always dominate the redistricting

process. Indeed, there is historical evidence suggesting that political gerrymandersin the United States existed as early as 1740. The practice manifested itself inBritain in the form of rotten boroughs, or parliamentary districts that contained anextremely small amount of voters. The most famous of these was ‘Old Sarum’ a

jurisdiction in which there was allegedly more sheep and cows than people. SeeElmer Gri th, The Rise and Development of the Gerrymander (Chicago: Scott,Foresman, and Company, 1974) 26-28. Cited in Vieth v. Jubelirer 541 US 267(2004) (rejecting a partisan gerrymandering claim under the 14 th amendment’sequal protection clause but maintaining the justicability of these claims under the1st amendment). But there, was early resistance to malapportionment to be sure.Max Farrand, The Records of the Federal Convention of 1787 (New Haven: Yale,1911) 132. and Bernard Baiyln, Ideological Origins of the American Revolution (Cambridge: Harvard, 1967) 47. The practice takes its name from Elbridge Gerry,who drafted a skewed and malapportioned redistricting map in 1812 in order to

diminish the power of Federalist voters in the Bay State.


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the government in question loses legitimacy in the eyes of its citizens, tothe extent that voter turnout and civic engagement levels are lowered byunjust exclusion (henceforth referred to as thelegitimacy principle).37 Tismechanism is harmful because it encourages apathetic behavior among thecitizenry during election season, a time when the exact opposite demeanor isrequired, and has the potential to ultimately impair the government’s abilityto function.

Just electoral procedure is a sine qua non for any government hopingto fall under the democratic label – but it is not the only one. o besure, a state that grants universal suffrage and ensures equal opportunityto participate in the political process would still be seen as decient tomost if it silenced political dissidents, segregated on the basis of race, orsubordinated half the population because it lacked a Y chromosome.38 It

37: See Grutter v. Bollinger 539 U.S. 306 (2003) (upholding the University ofMichigan Law School’s a rmative action program in part on the grounds thata failure to integrate leadership positions in American society would stir racialunrest and further deter the arrival of a color-blind society).38: Indeed cases championing these propositions have been condemned by allstrains of popular thought in legal academia. See Prigg v. Pennsylvania 41 US539 (1842) (holding that slave-owners have a common law right of recapturefor reclaiming runaway slaves), Paul Finkelman, Story Telling on the SupremeCourt: Prigg v. Pennsylvania and Justice Joseph Story’s Judicial Nationalism ,SUPREME COURT HISTORY (1994), 247-294, Dred Scott v. Sandford 60 U.S.393 (establishing in dicta that African-Americans had for more than a century

before 1854 been regarded as beings of an inferior order, and altogether un tto associate with the white race, either in social or political relations; and so farinferior, that they had no rights which the white man was bound to respect; andthat the negro might justly and lawfully be reduced to slavery for his bene t),Christopher Eisgruber, The Story of Dred Scott: Originalism’s Forgotten Past ,Constitutional Law Stories 155-186, Plessy v. Ferguson 163 U.S. 537 (1896)(ruling that separate but equal public transportation facilities did not violate the14th amendment’s equal protection clause), Cheryl Harris, The Story of Plessyv. Ferguson: The Death and Resurrection of Racial Formalism , ConstitutionalLaw Stories 187-230, Bradwell v. State 83 U.S. 130 (denying that the 14 th amendment’s privileges and immunities clause conferred any rights upon womenand remarking in dicta that the law of the creator required that women remain inthe home), Catherine Mackinnon, Sex Equality (New York: Foundation, 2001),Frances Olsen, From False Paternalism to False Equality: Judicial Assaults on

Feminist Community: Illinois: 1869-1895 , 84 MICH. L.REV. 1518 (1986). Minorv. Happersett 88 U.S. 162 (1874) (holding that the 14 th amendment’s privilegesand immunities clause did not confer the franchise on women), Nina Morais, Sex

Discrimination and the Fourteenth Amendment: Lost History , 97 Yale L J 1153

(1988), Schenck v. United States 249 US 47 (ruling that a federal statute that

follows that substance is just as important as procedure. At a minimum,governmental outcomes in a democracy must respect the individual dignityof all because the right to participate is meaningless if the individualautonomy and self-development it promotes are made contingent on thegoverning majority’s whim (henceforth referred to as therights principle).39 From this perspective, the principle of procedural due process (forgivemy repetitiveness) in elections embodied above also has a substantiveelement because voter apathy, in tandem with collective action dilemmas,can prevent the enactment of policies that a majority or super-majorityof citizens would support.40 If we are willing to say that citizens wouldbenet not only from participating to enact policies they support, but also,from reaping their fruits as well, and that they have a right to engage inthese activities, the polity has suffered a substantive harm when its will isfrustrated because of a governmental framework that promotes such a result.

Which brings us to the failings of pluralist/public choice democracy.Pluralism fails on all three counts established above. One must rst considerthe non-discrimination principle. While pluralists would be correct toobject and argue that there is no de jure framework in place to deny racialminorities, members of persecuted religious groups, women, or the poor theright to vote and participate in elections, this equality is ctitious. Pluralismassumes that all groups have equal nancial ability to organize and asserttheir interests in the market place of ideas by taking out political ads. Buteven from a micro-perspective, many members of marginalized groups lackthe necessary funds to engage in pluralist politics – and may not even knowthat there are others out there who feel as oppressed and rejected as they

do.41

In truth, the aw with the pluralist heaven is that the chorus sings with

criminalized attempts to conspire and cause disloyalty in the United States armyvia the publication of newspapers did not violate the First Amendment), GeraldGunther, Learned Hand and the Origins of Modern First Amendment Doctrine:Some Fragments of History , 27 Stan L Rev 719 (1975), and Ronald Dworkin, A

Matter of Principle (Harvard: Cambridge, 1985).39: See John Hart Ely, Democracy and Distrust (Cambridge: Harvard, 1980) , Martin Redish, The Value of Free Speech , 130 U Pa L Rev 45 (1974), and EdwinBaker, Scope of First Amendment Freedom of Speech , 25 UCLA L Rev 964(1978) [cited in Kathleen Sullivan and Gerald Gunther, First Amendment Law (New York: Foundation, 2007) 7.40: Russell Hardin, Collective Action (Baltimore: John Hopkins, 1982). KarloBarrios Marcelo and Mark Hugo Lopez, “Civic Duty and Voter Apathy,” inVoting in America , (Westport: Praeger Publishers, 2008), 173-185.41: Elmer Schattschneider, The Semisovereign People (Fort Worth: Holt,Reinhart, and Winston, 1960).


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a strong upper class accent.42 Te right to vote for candidates or policies isreduced to a cruel joke if the voter is unable to effectively communicate hisperspectives on these issues to his countryman beforehand and inuence thechoices on the ballot simply because his pocketbook is empty.Buckley , in itsmajestic equality, allows the rich as well as the poor to spend millions on adsand take over V stations.43

Pluralism does not fare any better when we turn to thelegitimacy andrights principles. I examine these two together because the establishmentof the former procedural harm is sufficient to prove the latter substantiveharm. Pluralists may say that one would be hard pressed to come up withan empirical study proving that the current campaign nance regime is thesole cause of voter apathy. But in a nation with an electorate of over 300million individuals, in a state where voters are not incentivized to go to thepolls already because they rationally gure that their one vote will not makea difference, is it really all that unreasonable to presume that an electoralsystem favoring the rich and well born will further discourage lower andmiddle class citizens from participating in the electoral process?44 Ourskepticism towards the apathy argument should be a function of its noveltyand plausibility – and it is certainly not unprecedented or inconceivablethat “the greatest menace to political freedom is an inert people” pummeledinto submission by “the baneful inuence of exorbitant wealth.”45 Hence,

42: Ibid.43: This line is a play on a famous quote from the French poet, Anatole France.France declared that “the law, in its majestic equality, forbids the rich as well asthe poor to sleep under bridges, to beg in the streets, and to steal bread.” AnatoleFrance, The Red Lily at 91 (1894).44: This harm is far from fanciful. After three popular initiatives supported by amajority of the electorate were defeated by high spending media campaigns at the

polls in Colorado during the 1976 election, a local newspaper opined: “What waslost on Tuesday was more than…good amendments. The big money boys haveundoubtedly put a chill on the e orts of citizens groups to put issues on the ballot.Obtaining the needed signatures for an initiative is hard work, and nobody wantsto waste his or her time if all is to be stomped under the bankrolls of those with

power.” See J. Skelly Wright , Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality , 82 Colum L Rev 625 (1982).Indeed, Cass Sunstien has argued that Buckley should be viewed “as the modern-day analogue of Lochner v New York ” 198 US 45 (1905) because it takes themarket status quo as just and pre-political, and to use that status quo to invalidatedemocratic e orts at reform. Use of existing distributions for political expendituresmarks out government inaction. Supra Note 14.45: See Whitney v. California 274 US 357 (1927) (Brandeis, J., concurring)(upholding a conviction under a state criminal syndicalism statute but adding

pluralism is similar to a Greek Siren, beautiful from a distance butdangerous upon approach. Tus, we return to square one. If pluralist/publicchoice democracy cannot provide an intellectual framework for evaluatingthe propriety of campaign nance reform, what theory can?

It is this art icle’s submission that a communitarian model can providethe democratic foundation we seek. In contrast to pluralism, under acommunitarian theory of democracy, political preferences are not presumedto be immutable but rather, can change through deliberation on what thepublic good requires.46 In the words of Stanford Law School professor, PamKarlan, the purpose of politics in a communitarian democracy “is as muchabout creating preferences as it is about satisfying them.”47 Tis small butimportant shift in premise yields implications that bring communitariandemocracy into greater conformity with thenon-discrimination, legitimacy ,and rights principles.

Deliberation is essential for a communitarian democracy.48 Becausethe quality of deliberation is improved by the inclusion of many differentperspectives in the polity, communitarian democracy dictates that thestate take affirmative steps to remove structural impediments preventingdisadvantaged groups from effectively advancing their views.49 Tisrequirement accommodates thenon-discrimination principle and impliesthat regulations (or an absence thereof) permitting some groups to drownout or dilute the message of others, who are unable to organize becausethey lack an arbitrary or irrelevant characteristic, are to be disfavored. Inturn, increased inclusion in the deliberative process, in tandem with otherstate efforts, is likely to increase civic participation and improve perceptions

of the governing regime’s procedurallegitimacy among all groups, not justthe well-off.50 Finally, a state in which voter apathy and collective action

more girth to the incitement test). Nixon v. Shrink Missouri Government Political Action Committee 528 US 377 (2000) (remaking that the amount of empiricalevidence need to satisfy heighted scrutiny varies with the novelty and plausibilityof the professed government reason.) The Papers of Thomas Je erson, VI, 290and The Works of John Adams, IV, 199 [cited in Gordon Wood, The Creation ofthe American Republic , (Chapel Hill: North Carolina, 1969) 64].46: John Rawls, A Theory of Justice (Cambridge: Harvard, 1971). Owen Fiss,

Money and Politics , 97 Colum L Rev 2479 (1997). “Edmund Burke, Speech to theElectors of Bristol,” University of Chicago, accessed May 2, 2015, http://press-

pubs.uchicago.edu/founders/documents/v1ch13s7.html .47: See McClutchen v. FEC at 15 (cited in note 24).48: James Fishkin, The Voice of the People (New Haven: Yale, 1997).49: Ibid.

50: See note 35.

http://press-pubs.uchicago.edu/founders/documents/v1ch13s7.htmlhttp://press-pubs.uchicago.edu/founders/documents/v1ch13s7.htmlhttp://press-pubs.uchicago.edu/founders/documents/v1ch13s7.htmlhttp://press-pubs.uchicago.edu/founders/documents/v1ch13s7.html


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impediments are combated to the fullest extent possible is less likely tosuffer a substantive harm in the form of a policy outcome that would nothave resulted had the entire citizenry been properly incentivized to speakup during the electoral process.51 Hence, the politicalrights of the populaceare protected. Skeptics may reply that no practical implementation of thecommunitarian theory can omit all subtle devices working to discriminateagainst certain groups, cast doubt on the government’s legitimacy, orprevent the full exercise of political liberty.52 Tis much is true but, half aloaf is preferable to none at all. It follows thatBuckley was wrong as a matterof principle. Terefore, one must examine how a communitarian democratictheory should inform and restructure our understanding of the problems atissue inBuckley .

If we adopt a communitarian lens, the $1000 cap on expenditures atissue inBuckley is best understood not as a pure restriction on speech butinstead, as a procedural regulation designed to ensure fair elections. Tereare several reasons why this categorization is proper. First, restricting theamount of money a private citizen may spend independently during acampaign does not place a blanket ban on political speech or censure a givenviewpoint. o the contrary, the cap only forces wealthy spenders to engagein different kinds of speech that may be more conducive to deliberationsuch as grassroots canvassing. A sincere face to face conversation about apolitical issue is likely to promote the discovery of truth and the intellectualdevelopment of the citizenry in a way that a malicious thirty second adnever could.53 Te alternative modes of communication promoted by thisregulation also ‘levels the playing eld’ among speakers because, unlike

money, time and effort are resources that are more readily available tothe less fortunate. Cynics may retort that this view is awed because anexpenditure cap disproportionally disadvantages conservative advocacyand sties the discovery of the truth because money is essential for wagingeffective campaigns. As an empirical matter, the rst objection is dubiousbecause the political opinions of elite donors are not homogenous – indeed,the interests of the wealthy differ in many important ways such that arestriction on their ability to spend, even if it does disproportionally affectthis class, is not a pretext for censuring conservative or liberal ideas.54 Te

51: See note 37.52: For a more cynical view, see Lillian BeVier, Campaign Finance Reform,Specious Arguments, Intractable Dilemmas , 94 COLUM. L.REV. 1258 (1994).53: See Dworkin (cited at note 14).54: See Shaila Dewan and Robert Gebelo , Among the Wealthiest 1%, ManyVariations , New York Times, Jan. 14, 2012.

second objection betrays a fundamental misconception that has obscureda true understanding of what was at stake inBuckley . Regardless of howbroadly one reads the First Amendment, almost all parties agree thatspending money is an action that is analytically distinguishable from speech.Tere are some instances where money can advance expression and there areothers where it does not. Money is only signicant insofar as it is a vehiclefor speech. But as established above, it is not the only way to get from point A to point B. Moreover, to the extent that money is the only viable means oftransmitting electoral expression currently, this unfortunate status quo is afunction of the political system’s failure to limit demand for the commodity– a situation that the expenditure limits were designed to correct. In short,if one limits the amount candidates and private citizens may spend, moneyquickly losses its preferred position. Hence, the second objection is circular. All that remains is to devise a new legal framework for evaluating campaignnance limits.

Tere is a great deal of similarity between ballot regulations and politicalmoney. Both regulations arise in the context of elections, implicatecountervailing First Amendment rights, and are justied by the compellingstate interest in maintain order during elections and ensuring proceduralfairness.55 In the same way that one may not use the ballot as a soap boxto overwhelm voters with repetitive and slanted messages in order toprevent them from exercising a discriminate choice, public deliberationrequires a measure of streamlined equity to ensure that ideas are evaluated

55: Samuel Issacharo , Pam Karlan, and Richard Pildes, The Law of Democracy: Legal Structure of the Political Process (New York: Foundation 2012). Burdickv. Takushi 504 US 428 (1992) (holding that a state prohibition on write in votingdoes not violate the First and Fourteenth amendments), Munro v. SocialistWorkers Party 479 US 189 (1986) (ruling that a state law requiring candidates toobtain at least one percent of the primary vote in order to appear on the ballot didnot violate the First and Fourteenth amendments), Timmons v. Twin Cities Area

New Party 520 US 351 (1997) (establishing that a state prohibition on fusioncandidacies does not violate the First and Fourteenth amendments), Crawfordv. Marion County Election Board 553 US 181 (2008) (sustaining a state voteridenti cation law on a facial challenge because of a lack of compelling evidencethat the measure would unduly burden the right to vote), Randall v. Sorrell 548US 230 (2006) (invalidating a state contribution limit because it was too lowand prevented candidates and political committees from amassing the necessaryresources for e ective advocacy), Citizens United v. Federal Election Commission 558 US 310 (2010) (Breyer dissenting) (objecting to the Court’s decision to applyintermediate scrutiny to a prohibition on corporations and unions using treasuryfunds to engage in independent expenditures and preferring the application of a

balancing test.)


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on their merits, rather than on how forceful their advocates are.56 Whenone considers that communitarian democracy requires electoral speechto facilitate deliberation, one can conclude that the real purpose of the“First Amendment…is not to guard…unregulated talkativeness. [Teprovision] does not mean that on every occasion every citizen shall speakin the public debate, but it does mean that everything worth saying shallbe said.”57 o be clear, this piece is not advocating that the governmentmake content based decisions and censure electoral speech. However,it is advocating that the constitution permits the government to fosterdeliberation among all its citizens by ensuring that economic inequalitydoes not bleed into the political sphere. If one believes that the discovery oftruth is better promoted by communitarian deliberation and not a clash ofnon-representative interest groups that are unwilling to change their policystances, an interpretation of the First Amendment that, at the very least,does not balance the right of the polity to deliberate against the right of theindividual to spend is incorrect. Hence, courts should evaluate expenditurelimits with the same balancing test that they use when reviewing ballotregulations. A jurist would rst ask whether the limit unduly burdens purespeech while also taking the pro-deliberative rationale into account.58 Ifthe limit is burdensome, it would have to be narrowly tailored to serve acompelling government interest. If the limit is not burdensome, it wouldonly have to be rationally related to a legitimate government purpose inorder to be upheld.59 Tis approach is preferable because it takes reasonsof state into account in the inquiry and forces judges to be realists whenevaluating laws that touch the heart of a democracy’s ability to function.

In this particular instance if justice is to be done, circumstances must bereckoned with.

56: See note 44.57: Alexander Meiklejohn, Free Speech and its Relation to Self-Government (New York: Harper, 1948).58: See Dewan and Gebelo (cited at note 53).

59: Id.


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24 | Balance, Justice, and Honor UCULR Volume IV, Issue 1 |25

Balance, Justice, and Hoor: Bedoin Customary Law in theModern World

Williams Dixon

Abstract

Tis article examines the nomads in the Middle East, the Bedouin, andhow their honor-based society resulted in a unique justice system unlike

those of most sedentary cultures. Te unforgiving conditions of the desertnecessitated a code to govern interactions between people, families, andtribes to facilitate survival. Te typical verdicts in customary law attemptedto make injured parties whole and repair necessary relationships essentialto desert life. In a community where every individual had an importantrole, no punishments were designed to remove an individual from society. After a brief introduction to Bedouin culture, I introduce key fundamentalsof customary law before delving into cases of criminal law, domestic law,and territorial disputes. In discussing a select few cases recounted byoutside observers, I show that not only does the honor based code centeraround balance, but that it greatly differs from sedentary legal systems withsometimes negative consequences.

I. Background

For millennia pastoralists have endured in the deserts of the region nowknown as the Middle East. Perhaps the best known group of nomads is theBedouin, who have developed a social system that addresses all interactionsbetween people, tribes, and sedentary civilization. Te essential componentto the successful functioning of Bedouin society is their concept of honor.Perhaps most importantly, the Bedouin justice system does not focus onpunishment; rather it seeks to maintain relationships through decisions thatrely on honor and its restoration. Terefore, to engage in a thorough analysisof the cases and laws in the Bedouin social context, a basic understanding ofBedouin culture and honor is necessary.

In the past, many associated the Bedouin with pillage and theft.1 However with the help of research conducted by Louise Sweet an alternativeunderstanding is possible. Sweet proposes that the Bedouin camel raid is in

1: Louise E. Sweet, “Camel Raiding of North Arabian Bedouin,” Am

Anthropologist 67, 1132 (1965).

fact a balancing force that has resulted in an honor based code of conduct. Inorder to grasp the concept of the camel raid, one must understand the basicstructure of Bedouin communal structures. At the very center of Bedouinlife was the camel. Te camel was essential to the survival of the nomadicdesert tribes. Te Bedouin relied on the camel as a source of food in the formof milk, a source of clothes in the form of wool, a source of shelter in theform of leather, and a mode of transportation.2 Te camel is an animal thatis perfectly adapted for life in harsh desert conditions, can survive on littleor contaminated water, and has the ability to digest tough desert plants. Notonly can it drink unpotable water, but it also converts the water to milk that was used for consumption by the nomads, acting as a ltration system.3 Dueto its inuence in every aspect of the daily life of a Bedouin, the camel was aninvaluable resource. Nevertheless, the camels were always in short supply as aresult of natural crises and a long gestation period. Tese issues would makeit necessary to acquire adult replacements for the lost animals.

Such a resource was in high demand for the people of the desert not onlyfor survival, but also in differentiating social status. Noble tribes had rstclaim on the best camels. Among nobles, camels were never traded and onlygiven as gifts to kin.4 No noble tribe would sell its capital or demean itself bygiving tribute in camels. Te few camels that were sold to settled townspeople were old or sterile and were used to purchase necessary supplies such asgrains.5 Since there was no trading of camels between the groups of nobles,the only option was to raid another tribe to recoup the losses and restore abalance to the desert.

Te necessity of camel raiding as a balancing force resulted in a code of

conduct for interactions between the noble tribes of the desert. Reciprocalraids were always between equals and camels were the object, not loss of life.6 Camel raiding relationships followed a cyclical process, with periods of peace,broken by minor thievery, which led to raiding, that nally culminated in atruce and peace. At any given time, a tribe would be at peace with one tribe,in a breakdown of relations with another, and in open hostilities with yetanother. From perpetual raiding and “destruction,” perpetual peace was born. A tribe could always count on allies to come to their aid, even if they had beenenemies in the past. Animal husbandry, mainly of camels, goats, and sheep,

2: Id at 1136.3: Id at 1137.4: Id at 1137.5: Id at 1137.

6: Id at 1141-1145.


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dened the relationships a tribe would have with all others.7

II. Customary Law of the Northern Sinai

In the Northern Sinai, the traditional honor-based Bedouin justice systemis known as “customary law.”8 Under customary law minor disputes are settled without lawsuits so that relations between members of a tribe are repaired without litigation. Tis process relies on the deep respect for honor in Bedouinsociety. In the case of the Rwala Bedouin, the wronged party is asked to ceasehis claim of vengeance out of respect for himself and a powerful member ofthe tribe. A guardian is then appointed to ensure that the injured party doesnot pursue the defendant any further.9 Trough mediations outside formal judicial procedure, the Bedouins are able to repair the relationships that theydepend on for their survival. In the Northern Sinai an elder will mediateminor disputes and arguments between families and tribe members. In manycases, the two parties will consent to end their quarrel without litigation outof “respect and esteem for elders” as well as the recognition of the signicanceof the family and tribal unit.10 For minor disputes the Bedouin system of lawand justice works efficiently and facilitates rehabilitation of the community.

For more serious disputes other avenues must be pursued. In RwalaBedouin society, judges are selected based on heredity. Te judicial power,prestige, and honor is passed down from father to son. Decisions made byhereditary judges take precedence over judgements made by tribal elders orthe chief.11 Tis is different from the nomads of the Northern Sinai. Insteadthey choose their judges from tribal elders who have survived a long life with

their honor intact. Te chosen elders are then assigned different roles basedon the subject matter of their experience. Judges in the Northern Sinai canrange in specialty from palm tree-related disputes to blood crimes.12 Whilethese two selection processes are distinct, they both rely on the honor ofthe family or individuals serving as the customary judges. Te honor based judicial systems, which shift focus away from punishing the criminal andtowards reaching a consensus between defendant and plaintiff, immediately

7: Joseph J. Hobbs, Bedouin Life in the Egyptian Wilderness 8 (U Austin 1989).8: Kamal Abdallah al-Hilw and Said Mumtaz Darwish,Customary Law in

Northern Sinai , trans. Roberta L Dougherty xvi (Cairo: Te Committee for thePreservation of North Sinai Cultural Heritage 1989).9: Alois Musil,The Manners and Customs of the Rwala Bedouins 426 (AmericanGeographical Society 1928).10: Al-Hilw and Darwish at 3 (cited in note 8).11: Musil at 426-427 (cited in note 9).

12: Al-Hilw and Darwish 4-14 (cited in note 8).

presents a problem for the states who count the Bedouin as their citizens. Which system of law should be implemented for the Bedouin and how canit be enforced? Does the continued practice of customary law show a lack ofstate authority over the Bedouin?

With the Bedouin’s tribal social structure and sense of honor comes adenition of justice and system of punishments that are at odds with thepractices of many modern sedentary states. Te main difference between statelaw and customary law is the system of punishments for crimes committed.In Bedouin society, there are no punishments of imprisonment, hard labor, orexecution. Instead customary law dictates that property be returned and nespaid to compensate for damages to property, social position, and status withthe understanding that the verdict can be subject to mediation.13 Followingthe decision of the judge and the payment to the injured party, the wrongdoercontinues to fulll his position in the tribe with no restrictions. An example ofthis can be seen in the verdict from amanshad , a judge who deals with honorcrimes – ones that concern rape, cutting of the face, and guarantors falselyaccused of breaking their pledges. Judge H.ajj Ibrahim Sulaymaan Suwaylimof the Masaa’iid tribe gives the following verdict as an outer limit for thechoices the parties can make concerning punishments in the resolution ofrape cases. Te weapon or transportation of the rapist used to commit thecrime is conscated or paid for in an equivalent value of camels (usuallyaround 10 camels). Te judge then states that the man must lose the handused to touch the woman, the tongue used to order the act, and the eye thatsaw her in an indecent way. Tese punishments can also be commuted tocamels, at 10 camels per body part. Once all payments for the acts committed

in the crime are paid for, the woman receives more camels, sheep, and goldas compensation for the loss of her honor (usually 40 each). Finally, agsare to be placed where the crime was committed, the place where the judgemade his decision, and one for the father. If the crime was committed in herhusband’s tent, it is directed to be covered with white silk.14

Many crimes that occur in Bedouin society are resolved by a verdict wherestrict accordance to the law is one option, and a mitigated verdict is anotheroption. wo important components of the verdict should be noted: theoptions for punishment and the efforts to restore honor. Te rapist is givenchoices for payment that allow him to manage his material funds in ways that will reduce the likelihood of it affecting his or his tribe’s survival. If he needsa truck for transport or a weapon to protect himself, he is given the optionto pay for them in camels. If camels are valued more, he can keep them

13: Id at xxii.

14: Id at 69-71.


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between both men and their kin. Both men were asked if they would bereconciled with their cousin and upon agreeing were required to name asurety to ensure that the peace would be kept. After the completion of thisprocess, the two men embraced, kissed, and the conscated possessions werereturned.18 Once again the Bedouin justice system was shown to reconcilerather than penalize and to end violence rather than escalate the situation.In many cases, sharia law does not have an inuence in the proceedings andusually assumes a background role. Usually traditions in customary law,designed repair necessary relationships and to maintain balance within a tribeand between tribes dominate the legal proceedings. What is there to enforcethat harmony is the sense of honor in adhering to the mediated resolution.

IV. rading and Border Disputes

Te following case moves away from criminal justice and shifts into therealm of trading regulations and laws. Many aspects of the verdict not onlydisregard sharia law, but they contradict some of its fundamental tenets.19 Teagreement concerns the sale of a female horse between two Bedouin and theunusual customary law nature of certain stipulations. In terms of paymentfor the mare, the buyer has two months to pay the seller the full price of 50Palestine pounds or faces a penalty of 25 pounds as damages.20 Sharia lawforbids usury, the making of money from money. Between the two monthdelay of payment, similar to a loan, and the fee for the failure to pay within acertain time window, the deal is dangerously close to becoming usury. Withregards to the articles of the contract, customary law makes provisions that

sharia law does not address. If the rst or second foals of the mare are female,they belong to the seller and if they are male, they belong to the buyer. Tetransaction also provides that if a female foal dies before delivery to the seller,the buyer owes him a further 50 pounds.21 Sharia law does not discriminatebetween male and female offspring, and generally holds that all offspringbelong with the mother.22 Te deviation from sharia law is most likely aproduct of animal husbandry between the Bedouin and their most valuableresource – the Bedouin recognize the value of the female camel as the meansto preserve a herd. Te key provisions that make this deal suspect in theeyes of sharia law are necessary to ensure that the seller, the one losing an

18: Id at 443-444.19: Layish at 369 (cited at note 16).20: Id at 370.21: Id at 370.

22: Id at 369.

animal, receives adequate compensation and protects him from the exposureof reducing his assets necessary for desert survival.

Further shifting focus from sharia law, criminal law, and civil law is adocument designed to resolve a border dispute between two tribes, the A ḥayw āt and the iy āhah. Dening a tribe’s territorial boundaries andmaintaining those boundaries can be as essential to that tribe’s survival asthe animals they nurture. In arid regions where fertile lands and water arescarce, any and all territorial rights are heavily defended. Only members oftribes are permitted to cultivate these regions and more importantly, dig wellsand cisterns.23 Tis document and the process by which it was devised offers

insights into how tribes determined legal boundaries.Tis particular border dispute arose from the encroachment of the iy āhahonto A ḥayw āt lands as their numbers of adult men began to dwindle. Teyachieved this by cultivating elds and digging cisterns on A ḥayw āt land. Tedispute was taken to a new level during an incident with the Egyptian military, where telephone wire was stolen. After blaming the A ḥayw āt for the theftdue to it having taken place in their territory, a iy āhah shaykh then almostimmediately tried to claim that the land belonged to his tribe. Te Egyptians,not deceived by the iy āhah attempt to secure land and telephone-line guard jobs, determined that the A ḥayw āt had the legitimate claim to the region.24 As with the murder case of Ahmad Husayn al-‘Ali, the legal determination ofthe state did not constitute the conclusion of the border disagreement.

Te iy āhah continued to claim control over what had been determinedby the Egyptian army to be A ḥayw āt land. What followed was the customaryBedouin law resolution to border disputes. After all other avenues had beenexhausted, it was determined that a collective oath would be taken by eldersof the A ḥayw āt to provide a nal pronouncement on the border of the twotribes. Oaths are a nal recourse for the Bedouin because the nature of an oathcalls into question one of the parties’ honor. However, if no consensus can befound, oaths must be taken. Te A ḥayw āt produced a document outliningthe borders they were willing to agree to. During a following meeting, eldersof the A ḥayw āt would take an oath with the shaykh of the iy āhah andthe boundaries would be nalized. Unfortunately the shaykh of the iy āhahnever appeared at the set meeting.25 While customary law had not been able

23: Frank Henderson Stewart, Bedouin Boundaries in Central Sinai and theSouthern Negev: A Document from the Aḥayw āt Tribe 3 (Wiesbaden: OttoHarrassowitz, 1986).24: Id at 4.

25: Id at 5-9.


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to resolve the conict at the time of the book’s writing, it provides a furtherexample of the power of customary law and its capability as the ultimateauthority in restoring order and balance in the desert.

V. Conclusion

In all of these cases, one concept begins to emerge: Bedouin customarylaw differs signicantly from civil law codes in several key areas. In modernstates, when a suspect is apprehended the trial follows a sequential order –arraignment, trial, and sentencing. Te punishment for serious crimes almostalways results in lengthy imprisonment and the removal of the individual fromsociety. People who commit crimes are then known for the crimes they havecommitted and have problems nding jobs, living in certain communities,and performing day to day activities. In the murder case of Ahmad Husaynal-‘Ali, the man who killed the policeman is not marked a murderer andexcommunicated from his society. As soon as the judgement has been madeand the coffee has been drunk, he is restored as a fully functioning memberin the tribes’ social network. If the Bedouin removed a person from thecommunity every time a crime was committed, the entire tribe would sufferand their way of life could not be sustained. In the context of civil law, thevictim’s family is forced to accept and nd solace in the verdict determined bythe jury and the sentence given by the judge. In the Bedouin context, bothparties and their kin are directly involved in the proceedings.

In fact, in customary law the burden is on the victim and their kin tofacilitate the resolution of the issue. In many of the suits, the injured party is

asked to forfeit their right to blood vengeance or retribution. In the case ofMedbar and Belhân, the original victim’s kin was punished for the violationof a truce. A further example of a victim sacricing to settle conicts was inthe murder case of Ahmad Husayn al-‘Ali. Te murdered policeman’s kinhosted a gathering of over 2000 people without a complaint – all in thename of hospitality and honor. Tis suit also introduces another interestingaspect of customary law. Te reason for the original murder is not stated,but the accidental killing of the policeman was a direct result of an attemptto maintain the honor of a kin group. In an extraordinary cycle, honor bothcaused the incident that resulted in the destruction of relationships but alsorepaired the ties between the two families. Te nature of customary lawallows for the pastoralists to command justice to repair relationships betweenfamilies and individuals instead of forcing them to be subjects of the law.

With the increasing encroachment of sedentary civilization onto Bedouinlands, there is a need for cooperation between civil and customary law. As

seen in the cases studied in this paper, the two different legal systems are

often at odds with each other. Fortunately, the two are not always in conict.Te Egyptian government realized that attempting to impose civil law onthe Bedouin only results in further complications. In the editor’s preface ofCustomary Law in North Sinai , Ahmad Abd al-Majid Haridi references alaw passed in 1911 on the legal organization of Sinai. Te law allows tribalcustomary law representation in state law. Such a law allowed for the stateto impose penalties based on customary law rather than civil law.26 Tis isperhaps the best solution for accommodating two different cultures and legalsystems within one political territory. It allows the Bedouin to maintain theirtraditions and understanding of justice, preventing cycles of blood feuds, which in turn benets the state.

26: Al-Hilw and Darwish at xiv (cited at note 8).


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34 | Picturing Democracy UCULR Volume IV, Issue 1 |35

Picturing Democracy: Analyzing Religious Exemptions to VoterID Laws

Elise Kostial

Abstract

Voter ID laws, which require voters to present photo identicationbefore casting their ballots, represent a highly controversial trend inelectoral policy. Voter photo ID requirements exist in seven states. Whilesupporters maintain that voter ID laws prevent fraud, opponents fear thatthese regulations disenfranchise some segments of the voting population.

ypically, these concerns focus on prominent voting populations less likelyto possess photo identication, such as minorities, students, the elderlyand the poor. But, voter ID laws also impede democratic participation formembers of certain religious minorities. In this paper, I discuss how “strict”photo voter ID laws compromise the voting and religious-freedom rights of Americans with religious objections to being photographed. I examine voterID requirements based on the criteria courts commonly use to evaluatereligious exemption claims; I analyze the government’s interest in imposingvoter ID requirements, the sincerity of voters’ religious objections to beingphotographed, and the signicance of the burden that voter ID laws impose

upon these voters. I explore judicial precedent. And, I ultimately concludethat voter ID laws create unconstitutional voting barriers for those withreligious objections to being photographed, as well as that states have nottaken sufficient measures to mitigate these burdens.

Introduction

“You probably would not have Amish people voting” if a voter photoID requirement was established, Amish voter, Freeman Miller, claimed1.Religious beliefs inform the Amish community’s objection to beingphotographed. “[Voting is] something that we take pretty seriously … itgives you the right to select who you feel believes in our way of life,” he

1: See om Beres, “Middleeld: Proposed Voter ID Law Could Hurt Amish.” (WKYC, 2011), archived athttp://www.wkyc.com/news/article/184021/45/Middleeld-Proposed-voter-ID-law-could-hurt-Amish.

asserted2. State Senator im Grendell, who was also interviewed for thesegment, provocatively defended his Amish constituents, and even suggestedthat Ohio’s proposed voter ID law would condemn them to the position of“second class voters”.3

Unfortunately, the rights of Amish voters are not frequently at the centerof the political dialogue regarding voter ID laws. Amish communities arenot traditionally politically active4. ypically, the Amish are more likely tovote in the local elections that directly impact their communities.5 But,the potential inuence of this voting bloc has gained some candidates’notice. For example, in the “swing states” of Ohio and Pennsylvania, many,including President George W. Bush, have actively pursued the Amishvote.6 In 2004, in Lancaster County, Pennsylvania, Old Order Amish andMennonite voters turned out at a rate of approximately 62 percent7, verynear the national voter turnout rate of 64 percent8.

But, regardless of turnout statistics, a democracy must protect the rightsof all eligible voters. Voter ID laws, which require voters to present photoidentication before casting their ballots, threaten the enfranchisementof Freeman Miller and others who share his religious beliefs. Membersof certain religious minorities, including the Amish, Mennonites, andMolokans, object to being photographed due to their respective faiths.Terefore, they do not have, and cannot obtain, photo identication. Without statutory exemptions, these voters would have to compromise theirreligious beliefs in order to comply with voter ID laws and vote in person.Tat being said, voter ID requirements cause a conict between two rights

2: Id3: Id4: See Donald B. Kraybill, “Bush Fever: Amish and Old Order Mennonitesin the 2004 Presidential Election,” Mennonite Quarterly Review 81, 2007:168.5: See Erin Ann Szulewski, “Forgotten Voters: Te Constitutionality ofIndiana’s Voter ID Law and Its Effect on Amish Voters,” Rutgers Journal ofLaw and Religion, 2013: 120.6: See Te Associated Press, “GOP Courts Amish Voters in Swing States.”(NBC News, 2004), archived at http://www.nbcnews.com/id/5613947/ns/politics/t/gop-courts-amish-votes-swing-states/#.VGFPir6przJ.7: See Donald B. Kraybill, “Bush Fever: Amish and Old Order Mennonitesin the 2004 Presidential Election,” Mennonite Quarterly Review 81, 2007:191-192.8: See Kelly Holder, “Voting Registration in the Election of November2004. (U.S. Census Bureau, 2006), archived athttp://www.census.gov/prod/2006pubs/p20-556.pdf

http://www.wkyc.com/news/article/184021/45/Middlefield-Proposed-voter-ID-law-could-hurt-Amishhttp://www.wkyc.com/news/article/184021/45/Middlefield-Proposed-voter-ID-law-could-hurt-Amishhttp://www.census.gov/prod/2006pubs/p20-556.pdfhttp://www.census.gov/prod/2006pubs/p20-556.pdfhttp://www.census.gov/prod/2006pubs/p20-556.pdfhttp://www.census.gov/prod/2006pubs/p20-556.pdfhttp://www.wkyc.com/news/article/184021/45/Middlefield-Proposed-voter-ID-law-could-hurt-Amishhttp://www.wkyc.com/news/article/184021/45/Middlefield-Proposed-voter-ID-law-could-hurt-Amish


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36 | Picturing Democracy UCULR Volume IV, Issue 1 |37

fundamental to American democracy: the right to vote and the right toreligious freedom.

o my knowledge, the impact of voter ID laws on voters with religiousobjections to being photographed has not been holistically reviewed.Numerous articles address the merits of voter ID laws in general. A fewadditional articles discuss the relationship between religious freedom andother photo id requirements. For example, argued that driver’s licensephoto requirements are justied for public safety reasons.9 But, I havefound only one article, which examined religious objections to voter IDlaws10. Te article specically examined the effect of Indiana’s voter IDlaw on Amish voters, and suggested that the state should offer betteraccommodations.

I argue that the strict voter ID laws in seven states infringe upon thevoting and religious freedom rights of Americans with religious objectionsto being photographed. wo states have established no religious exceptionsto their strict voter ID requirements. In the ve states that have institutedreligious accommodations, the procedures by which the exemptions mustbe claimed are quite cumbersome. However, it appears that no voter ID lawhas been legally challenged on the grounds of religious freedom. Because judicial precedent regarding religious exemptions is somewhat ambiguous,it is difficult to predict how such a case would be decided. Firstly, I willexamine the legal history of religious exemptions in the United States.Secondly, I will consider photo voter ID requirements using conventionsbased on constitutional and statutory rights. Te courts use theseconventions to evaluate religious exemption claims; that is, the importance

of the government’s interest in establishing the requirement, the sincerityof the religious belief in question and the signicance of the burdenimposed upon free religious exercise. I will also explore relevant courtprecedents regarding other photo ID requirements and voter ID laws ingeneral. Ultimately, I conclude that states that statutorily protect religiousfreedom have an obligation to create religious exemptions to voter photo IDrequirements.

Te History of Religious Exemptions in the United States

9: See L.N. Harris, “You Better Smile When You Say Cheese: Whether thePhotograph Requirement for Drivers’ Licenses Violates the Free ExerciseClause of the First Amendment,” Mercer Law Review 61, no. 661 (2009):611, http://heinonline.org/HOL/LandingPage?handle=hein.journals/mercer61&div=32&id=&page=10: Szulewski, “Forgotten Voters,” (cit. 5).

Te freedom of religion is enshrined in the First Amendment, whichstates that: “Congress shall make no law respecting an establishmentof religion, or prohibiting the free exercise thereof”11. But, whether

Americans are entitled to special legal protections based on their religiousbeliefs is the subject of ongoing controversy. In the 1963 case,Sherbert v.Verner 12, the Supreme Court granted an American a legal exemption dueto her religious beliefs13. Te Court created the Sherbert est to evaluatepotential infringements on religious liberty by determining whethera regulation imposed a substantial burden on the exercise of religiousfreedom, and whether the government had a “compelling interest” inenforcing the14. Te Sherbert est was used until 1990, when the SupremeCourt established a new standard15 in the case,Employment Division v.Smith16. In Smith, the Supreme Court determined that theSherbert estcould not be applied to neutral, generally applicable laws17. Instead,according to theSmith doctrine, regulations impacting free religious exercisemust simply be “rationally related to a legitimate government purpose”18.Te Smith ruling signicantly limited the breadth of religious exemptions,and seemed to effectively preclude constitutional protections for voters withreligious objections to photo ID requirements.

But, the Court notably designated, as an exceptio

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